Peter Thiel's Plan To Destroy Gawker Went Way Beyond Hogan's Case

from the this-was-not-a-one-off dept

At this point, I've written a bunch of stories about Peter Thiel and his (largely successful) plans to bring down Gawker with lawsuits. I've made it clear why I think this is a bad thing -- and I've learned that many Techdirt readers disagree with me on that (though I appear to have won a few people over to my point of view after a bunch of discussions on this). Part of the issue, I believe, is that there are a few separate things at stake here, all of which get conflated and lumped together when it's important to look at them separately. There are questions about privacy violations, about the role and protections of the press, about the validity of financing lawsuits and about the way in which the judicial system works. I may try to unpack all of these in a separate post, but I did want to focus on one aspect that I find troubling that often gets dropped from the debate: and it's that this was not about financing one lawsuit against Gawker, but about finding any way to bring the company down.

Leaving aside, for now, the question of the Hogan lawsuit, it's becoming abundantly clear that Thiel's plan was to find any way possible to destroy Gawker through lawsuits. That link goes to a much more detailed report at Forbes (yes: warning that it hates people who use ad blockers), describing how Thiel's efforts here more or less financed an entire law firm to focus on hunting down anything to attack Gawker over. The article reports that someone working for Thiel approached the lawyer Charles Harder while he was working for another law firm. Soon after, Harder left to launch his own firm -- and his first client was Hogan and the first case against Gawker. And since then, Harder or Harder's fingerprints have shown up in a variety of cases involving Gawker, including labor cases:

Enter the new attorney, Harder, who has made pursuing Gawker a focal point of his new firm, Harder Mirell & Abrams. According to a former employee of Harder’s, someone in Thiel’s camp cold-called Harder at his previous law firm, Wolf Rifkin Shapiro Schulman & Rabkin, “looking for an entertainment lawyer.” By mid-October 2012 Harder had taken on Hogan as a client. Two months later, even though he was a partner at Wolf Rifkin, the 46-year-old with a southern California tan and bleach-white smile left to set up his own shop, taking the wrestler’s case with him. When Harder announced his new company in January 2013, he made his firm’s first filing on behalf of Hogan.

[....]

Beyond Hogan, who filed a second suit against Gawker in May alleging extortion in the dissemination of his sex tape, Harder has taken on at least two other clients with cases involving Gawker’s reporting. In January 2016 Harder filed suit against Gawker on behalf of Ashley Terrill, a writer who originally came to Gawker with a story involving the cofounders of dating app Tinder. Gawker writer Sam Biddle, in turn, published an unfavorable piece on Terrill, highlighting her own alleged inconsistencies and personal issues.

Harder also represents Shiva Ayyadurai, a former lecturer at the Massachusetts Institute of Technology who claims to have invented e-mail. In 2012 Biddle published a story on Gizmodo that undermined that assertion and called Ayyadurai a fraud.

Now we've already discussed in great detail the sheer ridiculousness of Ayyadurai's case, because as we've explained a bunch of times, Ayyadurai didn't invent email. But the Forbes article notes even more efforts by Harder to help anyone attacking Gawker -- sometimes with somewhat questionable means, including leading one person to feel used:

Dating back to January 2013–the same month Harder Mirell was formed–e-mails obtained by FORBES show that Harder was actively vetting unpaid interns for a labor case against Gawker. A former journalist named Phil Linsalata was e-mailing former Gawker interns at the time, saying that he was working on academic research “focusing on labor conditions in digital media.” After speaking with them on the phone, he would then send them to Harder’s firm for what he framed as a free “consultation.”

A former Gawker intern named David Matthews even signed a retainer agreement with Harder Mirell. Ultimately Harder passed the interns off to a New York-based law firm specializing in labor claims, which brought a class action against Gawker in June 2013 that was dismissed and later privately settled. Matthews claims that the lawyers misrepresented their intentions and now says he feels “the sense of being a pawn or an item in a ledger.”

The article also notes another lawsuit, filed by Meanith Huon, against both Gawker and AboveTheLaw for defamation. According to Forbes, Huon agreed to settle the lawsuit against ATL, but continued the one against Gawker on appeal (after the defamation claim was tossed out of court) because he was receiving financial support from Harder:

In a hearing last year Huon said that he had decided to settle with the former–but continue his crusade against Gawker in a higher court even after a judge dismissed claims of defamation. According to Steve Mandell, an attorney for Above the Law who was present at the hearing, Huon told the judge in open court that he wasn’t worried about his appeal because he was “getting support from Hulk Hogan’s lawyers in California.”

One oddity in all of this: Harder apparently never knew that it was Thiel financing all of this -- just that someone was willing to pay them to basically find any lawsuit to help burden Gawker. I'm not against the idea of third parties funding lawsuits. I see how that can be very helpful in many situations. But you have to recognize that this was not just about funding Hogan's lawsuit, but about funding a series of cases -- many of which appear to be highly questionable and done with highly questionable motives -- solely to burden a publication that Thiel disliked. That's what's so concerning about this.

And we've seen how this can impact others as well. Less than a year ago we wrote about a billionaire that not only filed a bogus defamation lawsuit against Mother Jones, but also had offered to fund others suing the site -- even after the defamation claim was thrown out. Merely defending that lawsuit cost Mother Jones and its insurance company over $2 million. Leaving aside the reasonableness or not of the Hogan verdict (we'll get to that later), the idea that this entire law firm was propped up to support basically any and all legal actions against Gawker -- not for purposes of getting justice, but clearly with the sole intent of taking down the company -- should raise many concerns.

Re: Re: Proof!

Huh? Being PC is not a crime, and to say they deserve everything they get means you are a nut fundie that believes in "rights for me, but not for thee."

You are a poster boy for being a complete hypocrite. I don't give a shit about being PC or not, you are a fascist acting like you are not one.

And Twitter is a private company, they can ban any fucking human they want just for looking stupid. I don't agree with their PC bullshit either, but I also am not a loser fucking citizen using twitter and helping their fucking revenue stream!

Government Action was taken against Gawker! There was no government action taken against Mark Kern. I don't see YOU or any other group of people coming to the aid of any little people that get their sex tapes published! How did Hogan take down gawker when tons of other women have their sex tapes published by ex's in revenge? Here is now... they have money and fuckers like you that let their fucking emotions rule their fucked up lives instead of supporting liberty!

Re: Re: Re: Re: Proof!

"I fear what corporations can do to free speech more than the government." - Aaron Swartz

Words of a coward that took his own life instead of standing and fighting for what he believed in. Businesses have the same rights as people do. Only a fool with a small mind would be more afraid of a business with less power and authority over his life than a government that kills and murders its citizens!

“I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”

~Thomas Jefferson

I have little respect for a fool that wears the constitution in defense of themselves but not others!

I would rather fight Microsoft than the damn Government! If you cannot tell the difference, I hope you remember that when you get fucked over during your next run in with the law.

Re: Re: Re: Re: Re: Proof!

Because with that, you're saying that the Koch Brothers, Donald Trump and other Billionaires have more Speech than you do.

"Only a fool with a small mind would be more afraid of a business with less power and authority over his life than a government that kills and murders its citizens!"

Good to know that you think the Founding Fathers were fools with small minds, especially since it was how Private Businesses were screwing colonialists over (even more so than the British government) that helped push them towards revolution.

Re: Re: Re: Re: Re: Re: Proof!

Man you have lost it.

Of course those assholes have more speech than I do. They have money and that buys a lot.

It's really funny you brought up the Founding Fathers since their words and writing support ME and not YOU! Read the below and reason for everyone why you think Madison would support you over the 1st? If the 1st can be suppressed in the way that this case has suppressed it, then the 1st has been effectively destroyed and I think that is just exactly what you and the PC folks have been wanting all along!

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or any pretext infringed.

“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

“The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

Re: Re: Re: Re: Re: Proof!

Oh, really? Have you ever tired to kill yourself? It might not be as quite easy as you seem to believe.

...instead of standing and fighting for what he believed in.

Maybe he did. Maybe he saw how they were going to use and abuse him and instead of being a chickenshit coward too afraid to say no to them, he gave them the big middle finger and sacrificed his own life, thus depriving them of what they wanted.

If a company is saying stuff you don't like, go to a different company. Let the power of the market decide. A company will never have more power than the government because the government had the military and the police and the ability to lock you up.

But either way take your logic to its clear end: anyone who speaks in a way that YOU deem politically incorrect deserves to be silenced. THAT IS POLITICAL CORRECTNESS. You are arguing FOR POLITICAL CORRECTNESS in trying to silence those you feel that do not toe the line.

Re: Re: Re: Re: Re: Proof!

If I TRULY was as bad as Political Correctness, Mike, I would have flagged EVERY SINGLE COMMENT that disagrees with me.

I would be trying to find ways to silence the discussion completely.

So, no, Mike.

I think that 1: you are ignoring it. 2: You're wrong for ignoring it.

Have you not seen the problems with what PC Culture has done to colleges and universities across the country? How people are literally saying "I'm not going to perform at Universities because they shut us down thanks to PC."?

Re: Re: Re: Re: Re: Re: Proof!

Nope, you are as bad the the PC crowd. Recognize it now, before it is too late for all of us.

You directly support destroying a company because you do not like them over a free speech issue. This is the poison that is PC Culture, this is YOU, this is THEM! You have joined their ranks and now bath in the scum they produce!

There is no other way to say it. You either support the 1st or you are a PC loving scumbag! Because the only end game for the PC crowd is to destroy the 1st and suppress the rights of people they do not agree with. You in a nutshell!

Re: Re: Re: Re: Re: Re: Proof!

I would be trying to find ways to silence the discussion completely.

You're encouraging silencing a publication because you dislike them. That's very much a politically correct position.

I find it bizarre that you can't see this. You are literally cheering on the closure of a website because you think they're bad. And your examples of why that's okay is because those you believe are "politically correct" are doing it to people you like.

Have you not seen the problems with what PC Culture has done to colleges and universities across the country? How people are literally saying "I'm not going to perform at Universities because they shut us down thanks to PC."?

Yes. I've seen that. And yet you're doing the same things. Saying that a website has no right to free speech because you don't like their speech.

Re: Re: Re: Re: Re: Re: Re: Proof!

As I pointed out in the first Gawker bankruptcy thread, there is a difference between Nick Denton's free speech, and his checkbook. He can still run a new website. He would even have a substantial advantage over a fresh player to that market thanks to his contacts. There is a bit of a chilling effect for whatever new venture he may undertake under the same umbrella, but it's an economic effect, not a speech effect. He can say what he wants, how he wants, when he wants, and the only effect will be on how much he can bilk from viewers for it, not on how much his message gets viewed.

Re: Re: Re: Re: Re: Re: Re: Re: Proof!

As I pointed out in the first Gawker bankruptcy thread, there is a difference between Nick Denton's free speech, and his checkbook. He can still run a new website. He would even have a substantial advantage over a fresh player to that market thanks to his contacts.

Yeah, the idea that it's not a violation of free speech to tell someone via the legal system 'You can still speak, just not using the platform you were before and/or in a manner I don't like' doesn't really hold up. That's like saying that it's not an interference of the press to take their machines because they're welcome to get new ones(before you take those too). You don't have to silence someone permanently to impact their free speech rights.

There is a bit of a chilling effect for whatever new venture he may undertake under the same umbrella, but it's an economic effect, not a speech effect.

No, it would be both, economic because starting anew is going to be costly in time and money and speech because what happened here sends a very clear message: If you say something that someone with enough money doesn't like they can and will drive you into the ground.

He can say what he wants, how he wants, when he wants, and the only effect will be on how much he can bilk from viewers for it, not on how much his message gets viewed.

Unless he says the 'wrong' thing, or Thiel decides driving Gawker into bankruptcy wasn't enough in which case he gets to enjoy yet another barrage of lawsuits designed to drive his new site under.

Also come again? He can start from scratch with a new website, and that's not supposed to drastically reduce the number of people that know about it and therefore read what's on it? If someone owns a popular site, or has a popular account on some service and they're told that they need to get an entirely new one that is absolutely going to impact the number of people who view the new one.

Re: Re: Re: Re: Re: Proof!

Mike, let's all take a moment to step back and calm down here. You just made a personal, kinda angry seeming attack (with CAPS) in your comment, which is something I normally admire you for NOT doing.

The guy you're replying to has a decent point about chilling effects. Political correctness is essentially a term for things that can be said without inviting retribution from others, and that retribution does not limit itself to nasty messages to the offender. Both sides of gamergate are a fine example.

As for the free market, that's a combination of an ideal to work towards and a pipe dream. As you yourself have many times pointed out, lots of markets are not free, and some of them by their very nature can not ever be free. Also, a company can in fact have the power of a government, as demonstrated in the railroad towns in the US, wherein the companies WERE the government.

As for your last paragraph, I must have missed a previous conversation you two had, because I'm not seeing where he said any of that. That said, I personally support free speech for all, even the assholes that have advocated for my murder (and I'm not gonna say which group they are, nor which target I am. I support free speech for all).

Re: Re: Re: Proof!

And P.C. culture KNOWS this and does all it can to silence people who "wrongthink".

So, not sorry, you may think of me as a hypocrite, you may not LIKE this, but...

If Gawker had stuck around for too much longer, Free Speech online would have been basically dead.

And the government wouldn't have to lift a finger to do it.

With Gawker being hit like this, making a massive blow against PC Culture and it's effects on silencing free speech, it STOPS what was going to happen.

FFS, look at Reddit, Twitter and Facebook and the controversies all three are facing right now over their censoring people, platforms, and other things that don't jive with the P.C. crowd.

Do you really want a world where your freedom of speech is limited online, not by the government, but by corporations and private entities to the point where there's hardly any place you can say what you want?

Because I sure as hell don't, and that's why I'm glad Gawker is gone.

And before you say "boycott Facebook"

I already do, what good does it do? Facebook is too damn big, you've covered this before! So have others, that not having Facebook access is basically like being cut off from everyone socially.

Make a new Facebook? Google tried that, it didn't work.

Someone may come up with something better later, but right now, what good would it do?

Besides, I have to ask, where did the judge say that Gawker and Denton couldn't post anything online or had to shut his business down or anything regarding Denton/Gawker's ability to communicate online?

Re: Re: Re: Re: Proof!

I think you are spinning out of control man.

Yes, there is a problem with businesses trying to stifle speech but that is far less of a problem than this case.

No, Gawker is not some single powerful entity with an almighty hand to bring down freedom of speech online. That problem is with each website as they move around and the masses of idiots like you foaming out the mouth over it all.

It is pretty clear that government is using its regulatory power to bully businesses because people like you refuse to allow them to have Constitutional protections against this. If you did let them have it, then they might support it more themselves. You see, you are shooting yourself int he foot here, and what is even worse, you are too stupid to feel it it.

If a business does not have constitutional protections, then it has a fiduciary responsibility to support your freedom of speech to avoid being sued out of existence due to fuckers like you!

Re: Re: Re: Re: Re: Re: Proof!

How was Hogan supposed to get any sort of arbitration when it came to his grievances with Gawker and Denton?

That question assumes that Hogan had a legitimate beef. Part of the argument people are making is that he did not.

What about Mitt Romney? A secret recording of his that was revealed (47%!) destroyed his career. Did he have a right to go after whoever published that video?

What about Robert McNamara? The Pentagon Papers were published by the NY Times and were undoubtedly damaging to his career.

In both cases, they could not do anything because of the right to publish. The fact that someone is embarrassed or offended or sad because of a press report isn't a reason to take down the publication. In fact, that argument is an EXTREMELY "Politically Correct" argument, saying that certain sites that publish stuff you don't like don't deserve to exist.

I'm honestly wondering if you're just doing parody here, because what you're advocating for is your own form of political correctness, and to silence those who are too politically correct for your taste.

Re: Re: Re: Re: Re: Re: Proof!

I think it is clear, Hogan had no case to begin with. I mean seriously? The right to the press is pretty clear! Unless someone is LYING about you... then when information does public it is public. If we can mark something as private to prevent the media from talking about it then the 1st is rendered impotent... for EVERYTHING!!!!

Not sure that you have the mental faculty to understand that however. Hope I am wrong, but doubtful that I am.

Taping cruelty is becoming a crime, thanks to idiots like you, this is becoming a reality.

I know full well that PC Culture is terrible, but you are just as bad and every bit the same as they are! Your support for this cases outcome makes it clear that someone said something you did not like and they need to be punished for it, exactly the same as any PC fucking idiot! That is why you ARE what you HATE!

Re: Re: Re: Re: Proof!

Wow, you are doubling down on the stupid man. Take a damn chill pill or something!!!

PC Culture has shit to do with this ruling. But it has everything to do with you and everyone saying someone should not have any Constitutional protections because YOU decided that you do not like them.

That is at LEAST as EVIL as the PC culture you claim to hate! To draw a parallel, you are becoming the evil you 'pretend' to fight against!

Re: Re: Re: Re: Re: Re: Proof!

If you are okay with shitting on anyone's rights because you decide you hate them then yes, you are the very thing you hate! You have become PC yourself. The difference is that your version of PC is different from theirs.

So what we have here is just you getting pissed that your version of PC is being trumped by those other nasty fuckers version of PC!

And cases like Gawker have been tried throughout American History. This is a terrible case because it overturns 2 fucking Centuries of Law and Order because your butt hurt over a simpleton bitch! The Jury was constructed of a bunch of fucking PC bastards that said fuck the Constitution. You are like every member sitting on that Jury ARE PC! The very culture you 'claim' to hate!

You have been had! You have become what you hate, you are what you hate!

I can't help but think the majority of people would be expressing vastly different opinions if this wasn't Gawker but somebody like the NY Times, WaPo, or some other news organisation that was less inflammatory.

All people are seeing is that those mean bullies are getting what they deserve.

Re:

Re: Re:

Denton is a multimillionaire, that's more than enough. And Intercept, which has come out hard for Gawker, (and is giving a sinecure job to major Gawker sociopath Sam Biddle) is backed by Pierre Omidyar, another billionaire.

Money matters in court, that's the real problem - something Gawker have exploited themselves, in counting on that their victims won't be able to pursue them.

Though, in Bollea's case, they counted not on money, but on reputational currency: since Bollea knew that he'd spoken of a guy in very racist terms, and that Gawker had a recording of it, they counted on getting away with publishing the sex tape.

Denton may have done some questionable things, starting with not doing all this in public. But in the end, his dirty tricks didn't get Gawker. It was Gawker's fantastic amorality and arrogance which got them (remember when they "joked" that they would publish child porn - in court, when asked a non-joking question?).

Is there anything actually illegal about this?

Did Thiel actually break any laws doing this? I agree that it's distasteful and worrying, but I can't see a crime anywhere in this. I suppose SLAPP might come into it, but it seems a stretch. Also, wouldn't any attempt to pass laws against this type of behavior run into First Amendment problems of its own?

Interesting to watch some people actually calling Mike out for being on the wrong side of this one.

Mike, in simple terms, if Gawker wasn't being abusive, there would be nothing to work with. Hogan's suit is the perfect example. Gawker could have (and should have) done nothing but publish a story and a few stills to prove that the tape existed, and they likely would have avoided the lawsuits. It's pretty hard to create liability when you publish the truth.

Instead, Gawker not only ran the full video (without permission, without USC 18 section 2257 documents,etc), they also engaged in a flame war with Hogan over the content. The publishing and all that followed were malicious and nasty, intended not to inform the public but instead instead to appeal to their prurient interests and to attempt to destroy a public figure for fun and profit.

Yes, Theil is being a vindictive dick in many ways. Yet, his "dick-ness" only works because Gawker is giving him the material to work with. It has taken only a single hit to pretty much knock them out. Gawkers choices put them in this place, and with or without Theil, Hogan would still have won the lawsuit because it's a pretty obvious case.

Meanith Huon

Meanith Huon... A ghost from the past. He represented a gay pornography studio Flava Works in a couple of bittorent lawsuits, and even won $1,5M (not sure the plaintiff was able to collect though). Search TorrentFreak for Flava — TF is down now, so I can't provide a link. Flava is a bit of outside of my area of interest because this company didn't extort file-sharers, but instead went after the initial downloaders via watermarking the films. I'm even reluctant to call them copyright trolls.

In the course of discussion of those lawsuits, Raul unearthed and posted some unflattering links (related to the allegations Above the Law was sued for). In two weeks someone, who I believe was Mr. Huon himself, stopped by and attempted to threaten us:

It would be fairly easy to issue a subpoena for your IP address and name you as a John Doe and sue you for defamation. Every day this posts remains is a republication o the defamatory statement.

Accusing someone of a crime is defamatory. The blog develops the content of the comments. Thus, Section 230 of the CDA does not apply. The John Doe commenters are also liable for defamation. A subpoena will reveal your IP address. Keep it up.

After he realized that we wouldn't succumb to intimidation, he relented. Nonetheless, he was successful in intimidating some online media, and many articles (for example, in St. Louis Post Dispatch) were removed.

Kind of a shady and unpleasant individual. Won't be surprised if Mike receives some threats from him.

Why doesn't Gawker counter-sue Thiel, or the law firm Thiel hired, for abusive litigation? Other media orgs can help fund the lawyer fees. At what point do you want to censor the media orgs? $20 each? $200 000 each? Or do you want to censor the overall pool? Or maybe it is unfair for them to unite as one, standing up for what they believe...

Thiel's actions are corporate murder

Thiel's actions are simply the corporate version of Thiel hiring a hitman to murder Denton.

It's nauseating to me that some people can't grasp the horror of this.

(There seem to be a few "I think it's great when horrible things are done - as long as they're done to people I don't like!" types replying here, but I don't assume they're representative of the whole population.)